Bill Would Restrict Informant Testimony in Death Cases

Anthony Graves was wrongly convicted and sent to death row in 1994 based largely on the testimony of an alleged accomplice in the fiery murders of six people. The accomplice, while on the execution gurney, admitted he was the lone killer. Ten years later, in 2010, Graves was exonerated.

State Rep. Harold Dutton, D-Houston, has filed a bill, HB 189, that aims to prevent wrongful death sentences in cases that involve unreliable testimony from alleged accomplices or jailhouse snitches who receive a reward for implicating someone else.

“What we have found is that there have been people who, for their own self-interest, have basically fabricated testimony about other folks, and as a consequence that person has been found guilty,” Dutton said.

Criminal justice reform advocates said the measure is a critical next step in Texas’ efforts to prevent wrongful convictions. Critics of the measure, though, argue that current rules already protect defendants against unreliable testimony and that eliminating such accomplice or informant testimony could tie prosecutors’ hands.

<:section>

Under HB 189, prosecutors in death penalty cases would be unable to use testimony from informants or from alleged accomplices of the defendant if the evidence were obtained in exchange for immunity, leniency or any other special treatment. The measure would also make testimony from cellmates of the defendant inadmissible unless the conversation was recorded.

“Odd as it may sound, Texas is at the vanguard of snitch testimony,” said Alexandra Natapoff, a law professor at Loyola Law School Los Angeles, and author of the Snitching Blog. Texas was one of first states to require the corroboration of jailhouse informant testimony and drug snitches, she said. And Dutton’s bill would make Texas among the first states to prohibit prosecutors from offering criminals benefits for their testimony.

A 2004 Northwestern University study of wrongful convictions found that informants played a major role in more than 45 percent of overturned death sentences nationwide.

“The use of criminal informants is a massive source of error in our most serious cases,” said Natapoff, who also wrote the book Snitching: Criminal Informants and the Erosion of American Justice.

She said the Texas bill recognizes that “rewarded testimony by paid informants is one of the riskiest, most unreliable forms of testimony that the criminal justice system tolerates.” And disallowing that testimony in death penalty cases, she said, would acknowledge that cases in which an individual’s life is at stake require a higher ethical standard.

“Criminal informants have strong incentives to lie and very few disincentives to lie, because criminal informants are almost never punished,” Natapoff said.

Jeff Blackburn, chief counsel for the Innocence Project of Texas, said his organization has long pushed lawmakers to restrict the use of informants and snitches.

“That’s what the government does when they really need to convict somebody and they really don’t have the evidence,” Blackburn said. “It sounds dramatic, and it’s very tempting for prosecutors to use.”

<:section>

State Rep.-elect Joe Moody, an assistant El Paso County district attorney, said accomplices or informants are often the only witnesses who know the circumstances of the crime. Existing rules allow defense lawyers to question informants about deals they may have made with prosecutors in exchange for their testimony. If a defense attorney effectively cross-examines the witness, Moody said, the jury should be able to make an informed decision about the person’s credibility.

Requiring electronic recordings of jailhouse conversations, as Dutton’s bill suggests, Moody said, would force jails to install recording equipment in all of their facilities.

“I think the rule itself would do a disservice to trying the case in the full and open light,” said Moody, D-El Paso.

In the wake of dozens of wrongful convictions in recent years, Texas has passed a number of measures to prevent such injustices and to compensate the victims of the criminal justice system’s mistakes. Most recently, in 2011, legislators passed a bill that improved police procedures for eyewitness identifications after studies showed misidentifications played a major role in many wrongful convictions.

Dutton has filed similar proposals to curb the use of informants in past sessions, and they have failed. As Texas continues to make national headlines with its exonerations, Dutton said, he is hopeful that lawmakers will be more amenable in the 2013 session.

“Members now recognize that Texas needs to do a lot better job of protecting the integrity of our legal system,” he said. “The truth of the matter is all the systems we have in place to protect innocent people from being convicted simply haven’t worked.”